Curaçao and Assistance in Litigation: the “Legal Helper”

Anyone in Curaçao who wishes to initiate legal proceedings against a regular opposing party—meaning a fellow citizen or a legal entity (NV, BV, or foundation)—will encounter several surprising aspects.

Unlike many judicial procedures in the Dutch part of the Kingdom, legal representation by a lawyer is never mandatory in Curaçao. Anyone may appear before the court as a claimant or defendant and draft procedural documents themselves, meaning they can write their own claims or formulate their own defense.

The most far-reaching element, undoubtedly originating from a bygone era , is the provision of Article 110, paragraph 2 of the Code of Civil Procedure (Rv). It states that a claimant who cannot write may present hisr claim orally, after which the court of first instance will have it recorded. Remarkably, this privilege applies only to the claimant. The opposing party must at least be able to read or have the claim read to him and have someone else to write down his response; the judge does not assist him in this regard.

A second notable feature of litigation is that the Court of First Instance may provide guidance to both parties and actively point out legal and evidentiary arguments they could present. The judge is therefore not passive or reserved, as in the European part of The Netherlands, but instead actively contributes, depending on the circumstances, to help parties formulate or challenge a claim effectively.

One of the most well-known defenses in this context is limitation (statute of limitations), which is the legal rule that after a certain period of time, a right can no longer be exercised. A common example is the limitation of a monetary claim. In simple terms, limitation usually means that the possibility of forcing an opposing party to make a payment through a court judgment disappears, simply because too much time has passed and the claimant has not sufficiently reminded or forced the other party to pay.

In the Netherlands, if a defendant facing a claim for payment forgets to invoke limitation, the judge may not apply it on his own initiative. During a hearing, a judge might subtly remark, “That was quite a long time ago, wasn’t it?”—effectively prompting the defense. In Curaçao, however, this is not an issue: the judge may independently apply limitation, even if the defendant does not invoke that right himself.

Anyone initiating legal proceedings would be wise to seek assistance from an expert, often a lawyer. According to the procedural regulations of the Joint Court of Justice (which has jurisdiction over the ABC islands and the BES islands), only lawyers accredited at the Court are allowed to act as legal representatives. In other words, they must be sworn in by the Court and have an office within its jurisdiction. A lawyer practicing in the Netherlands cannot simply handle a case on one of the islands, unless a local lawyer is also formally appointed for that client.
It is conceivable that a party wishes to proceed without a lawyer but still use the assistance of an expert, the so-called legal assistant (“rechtshelper”). This is often a jurist, sometimes a former lawyer, but it could also be, for example, a bailiff. This can be helpful, as the party can directly rely on that person’s knowledge during the hearing, especially if the party resides in the Netherlands and can only attend an oral hearing in Curaçao via video connection.

The Supreme Court ruled in April 1995 that the judge presiding over the hearing may allow such a legal assistant to be present and to speak om behalf of his client. The Court also determined that, when awarding legal costs, compensation for the legal assistant may be included.

For clarity: a legal assistant cannot represent the client; they do not act on behalf of the client. They only assist in drafting procedural documents and during the oral hearing. The client must always be present in court, either in person or via video connection if they cannot be in Curaçao. The legal assistant is therefore not a formal legal representative like a lawyer.
Recently, it appeared that the Joint Court of Justice refused, in advance, to allow a legal assistant—specifically a former lawyer who had traveled to Curaçao for a hearing on behalf of clients residing in the Netherlands—to speak. As the lawyer representing those clients, I had requested that this legal assistant be allowed to participate in a hearing concerning an inheritance matter, in which he had already assisted some of the heirs for three years and thus possessed extensive factual knowledge. This request was denied in advance, with the incorrect argument that only lawyers registered with the Court are permitted to act as legal representatives. This was an incorrect response, as the request was not for him to act as a legal representative.
An attempt to challenge this decision by recusal request was unsuccessful. Approaching the Supreme Court in the interest of the law is being considered.
Apart from the above: we regularly handle inheritance law matters with dedication. Therefore, if you have such an issue, do not hesitate to contact us.

Leo F. Delfgaauw
Attorney at law